Supreme Court Etiquette

Last week there was a hullabaloo about Justice Scalia’s chastisement of a lawyer for reading part of his argument. I wonder where that taboo comes from. In the British House of Commons, you get hooted at if you read a speech or a question–maybe there is a connection.

What Justice Scalia did, though, is no match for the act of turning your back to the advocate when you don’t like what he has to say. This used to be done by some of the more ornery Justices like McReynolds and Douglas. I suppose that is one way of making your vote clear. UPDATE: Learned Hand also used to do this to lawyers.

This gives me an opportunity to tell one of my favorite “urban myths.” Years ago Justice Byron White, who was not known for being cuddly on the bench, was one of the judges at a moot court at Yale Law School. He gave one of the students such a hard time with his questioning that the guy passed out. Supposedly, White looked at him and said, “I take it that you wish to reserve the balance of your time.”

Share

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

In the British House of Commons, you get hooted at if you read a speech or a question–maybe there is a connection.

Interesting if that’s so, as Churchill used to always use notes after he got suck in a speech early in his career. One way or another, it’s a dumb tradition, putting showmanship over substance. Maybe we should give extra credit if the speaker can stand on one leg or spin a basketball on a finger while presenting his or her argument?

It is not apparent to me that justices need cameras to make quips of that sort (first comment) since they have been making comments at least as long as there was audio (including the decades few listened to it). Some would restrain themselves a bit if there was a camera, others might play a bit more to it. Perhaps, we can see how it works the places (including Canada) where cameras are in place now.

The not reading thing sounds like something to prevent the argument to be some sort of stock staged reading of a speech as compared to live advocacy that includes it flowing from the tenor of the questioning. It also could be a matter of tradition — lawyers don’t read their final arguments to the jury in regular trials either. Being able to remember is part of the art of advocacy though it’s okay to have notes of some sort I presume including to read quotations (which I have heard from time to time when listening to orals).

What if a lawyer were to say, “I assume all of you have read mine and other briefs submitted to the Court. What are your questions, comments concerning my brief; or ask for my comments on matters in the other briefs that challenge my brief.”